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Monday, June 24, 2024

Tea leaves on gender-affirming care? (Updated)

SCOTUS granted cert in United States v. Skrmetti on whether Tennessee's ban on gender-affirming care for minors violates equal protection. This is a fool's errand, but I am trying to read the tea leaves on what it might do.

• The grant was narrow. It granted the petition of the U.S. on the equal protection issue as to Tennessee (where the Sixth Circuit held the bans were not gender-discriminatory and not subject to intermediate scrutiny). It did not grant (although it also did not deny) petitions from the private plaintiffs, their due process and parental-rights arguments, or as to Kentucky's similar law. (Compare this with Obergefell, where the Court granted as to all four states whose laws were addressed in the lower court).

Update: I forgot an important piece, related to the fact that the U.S. is the sole plaintiff/petitioner before the Court. What happens if Trump wins the election, which likely will occur before argument (expect the case to be on the November or December calendar) and certainly will occur before a decision? The Court is suspicious of SGs changing legal positions with every new administration. But a Trump Administration could not act quickly enough to stop this litigation. How quickly can Trump get his AG confirmed?

• There is no direct circuit split (yet). A divided Court in April stayed a district court injunction barring enforcement of Idaho's ban pending appeal in the Ninth Circuit, although without getting deep into the merits and with a lot of scope-of-injunction noise; not sure how much to read into the merits there. The en banc Fourth Circuit held that states violate equal protection by denying Medicaid coverage for gender-affirming care. And the Eleventh Circuit held that an insurance provider violated Title VII in not covering an employee gender-affirming care. But no other circuit has ruled on care bans to minors. The Court typically does not take cases to affirm, absent an actual split between courts of appeals (not district courts). And it typically does not take cases anticipating a circuit split--i.e., reviewing (and affirming) the Sixth Circuit to head off the Ninth Circuit. Maybe this changes in the Court's Imperial Phase, more inclined to believe it knows the correct answer now and less inclined to allow multiple circuits to weigh on the other side before SCOTUS' ultimate resolution.

• This may be a test of Bostock and whether what remains of that majority (Chief, Sotomayor, Kagan, Gorsuch, and (presumably) Jackson in place of Breyer) holds and expands to the 14th Amendment.

I will go out on a limb: The Court holds that these bans constitute gender discrimination requiring intermediate/heightened scrutiny, then remand for the lower court to apply that. See you in about 10 months.

Posted by Howard Wasserman on June 24, 2024 at 12:43 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


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